Senators Leahy and Lee Introduce Bill to Reform Section 702 of Foreign Intelligence Surveillance Act

Today, Senators Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) introduced a bill that would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) with several reforms. The bill is patterned on the USA Liberty Act, which was reported out of the House Judiciary Committee last week, and shares the same name. The Senate version, however, contains significantly stronger protections for Americans’ privacy, although its reforms are less sweeping than those contained in the USA RIGHTS Act sponsored by Senators Wyden and Paul.
 
Section 702 was enacted in 2008 to allow the government to obtain the communications of foreign targets located overseas without obtaining a warrant, even if the targets are communicating with Americans or the communications are stored in the United States. In the past year, lawmakers from both parties have expressed concerns that the warrantless surveillance sweeps in a potentially massive amount of Americans’ communications with insufficient restrictions on how that data is handled. The law will expire at the end of December unless Congress reauthorizes it.
 
The Leahy-Lee version of the USA Liberty Act would require U.S. officials to obtain warrants before accessing the content of Americans’ communications, thus curbing the practice known as “backdoor searches.” Unlike the House version, it does not include exceptions for searches conducted for foreign intelligence purposes or searches of people who have some link to suspected terrorists—exceptions that privacy advocates fear would swallow the rule. The Leahy-Lee bill also would clarify that the government can collect only communications to or from legitimate surveillance targets, and not communications that merely mention information association with them (so-called “about” collection). And it contains several other more modest changes to enhance transparency and accountability.
 
“This bill fixes the most serious problem with Section 702 surveillance today: the government’s ability to read Americans’ e-mails and listen to their telephone calls without a warrant,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program. “In contrast to the House version, the Leahy-Lee bill rejects the dangerous notion that the government can waive Americans’ constitutional rights by citing a ‘foreign intelligence’ or counterterrorism purpose. And it bans, once and for all, the legally dubious practice of collecting communications to and from people who are not themselves legitimate targets of surveillance.
 
“The bill is clearly a compromise measure, and there are important reforms it does not contain. It doesn’t require any court approval to search for and access certain information about Americans’ communications, known as ‘metadata.’ It does nothing to narrow the pool of permissible foreign targets—a critical protection, not just for innocent foreigners, but for the millions of Americans who communicate with them. And it would unnecessarily increase criminal penalties for mishandling classified information. On balance, however, it represents a significant improvement over current law and practice, and a very promising development in the reform debate.”
 
Read more about Section 702 and the Brennan Center’s work on Liberty & National Security.
 
For more information or to speak with an expert, contact Naren Daniel at (646) 292–8381 or naren.daniel@nyu.edu.

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